Hundreds of Sex Offenders, One Judge's Order and a Defiant Governor All Clash in Minnesota

Clearly frustrated by the state's inaction to remedy what he deemed an unconstitutional civil commitment program for sex offenders, a federal judge Thursday ordered Minnesota officials to make specific, immediate changes.

In his 43-page order, marking the apex of a highly publicized class action suit, U.S. District Judge Donovan Frank directed state officials to take steps to remedy the Minnesota Sex Offender Program, including:

-- Begin the discharge process for program residents who should no longer be there.

-- Ensure less restrictive facilities or placement options for residents deemed eligible for a custody reduction.

-- Establish a plan for annual risk assessments.

A defiant Gov. Mark Dayton rejected Frank's order Thursday and promised the state would seek to reverse the judge's instructions.

"I would not take any action that would compromise, to the slightest degree, the safety of the people of Minnesota," Dayton said.

Within hours of Frank's order, the state filed its appeal.

The judge was blunt in his condemnation: "Given the MSOP's decades-long history of operating an unconstitutional civil commitment program, the deeply systemic nature of the problems plaguing this state's sex offender civil commitment scheme, and the minimal progress made toward remedying any constitutional infirmities since the start of this litigation four years ago, the court concludes that it must exercise its broad remedial power," he wrote in his order. "The Constitution requires that substantial changes be made to Minnesota's sex offender civil commitment scheme at the MSOP."

Frank noted that the state isn't required to have a civil commitment program for sex offenders but opted to do so and therefore must assure there is funding to do it in a constitutional manner.

Program administrators can no longer wait for legislative action -- which has been urged but never taken, Frank said. "The court will not tolerate delay."

The judge also issued a warning: "-1/8I-3/8n the interest of public safety, the court hopes to avoid the need to impose a more drastic solution in the future such as demanding the release of individuals committed to the MSOP or shutting down the program's operation."

Dayton called that threat "totally unacceptable" and a potential risk to public safety.

"I'm doing what I was elected to do, which is to protect the safety of the people of Minnesota," Dayton said, speculating on the consequences of releasing what he called "extreme predators."

"These individuals did not end up there by accident," the governor said. "We're talking about a very, very serious risk to people" if the legal proceeding forces an offender to be released prematurely from a secure state hospital.

The sex-offender program came into the spotlight in 2011 when program residents filed a class action lawsuit claiming the system amounted to a prison sentence with no expiration date.

Offenders are civilly committed to the program by the courts, based on petitions by prosecutors, after they've served jail or prison time -- or, in some cases, in lieu of a criminal sentence.

The 21-year-old program is held out to be a phased treatment program, from which offenders can graduate if they complete treatment.

But no one has ever been fully released. More than 700 people are in the program -- all but one are male -- and more than 60 of them were juveniles when they committed their crimes.

The plaintiffs have argued that by not offering adequate treatment or periodically assessing whether an offender should be committed, the state is unconstitutionally confining people.

The state has maintained that the program is constitutional and that it has no constitutional obligation to offer treatment, risk assessments or less restrictive facilities.

After a six-week trial this year, Frank issued a 76-page ruling outlining the program's shortcomings and calling it unconstitutional on its face.

He ordered parties to submit proposed remedies before a hearing held last month. The state offered no suggested changes and instead submitted a brief criticizing the plaintiffs' proposals and saying the court lacks power to order changes.

Attorney Dan Gustafson, who represents the program residents who filed the lawsuit, said after Thursday's order was issued that his clients have been frustrated by the pace of the case but are happy with the direction things are headed.

"The court's first interim relief order is a good first step to begin to remedy the significant constitutional failures of this program," Gustafson said in a statement. "Plaintiffs believe that, in light of the court's earlier findings of unconstitutionality, which are reiterated in this order, reevaluations of all current patients at MSOP must occur promptly and should be completed as soon as possible."

Frank's ruling included specifics about who should be evaluated and when. The assessments should begin with six residents already designated for a transfer to a less restrictive facility, along with Eric Terhaar, who was flagged for immediate release by a court-appointed review panel last year, and Rhonda Bailey, the program's only female resident. The next group to be reevaluated includes the elderly, the physically and intellectually disabled and juvenile-only offenders. And evaluations of all remaining residents must be complete by the end of 2017, Frank ordered.

The remedies ordered are interim only, Frank said, and will be monitored by the court and the court-appointed special master, former Supreme Court Chief Justice Eric Magnuson. More remedies are likely, Frank said.

Though he ordered state officials to take specific actions, Frank said it's the state's responsibility to come up with the detailed plans to implement the changes.

Frank once again urged the Legislature to act and suggested state officials pressure lawmakers "to prioritize these remedies and to provide the necessary funding to remedy the pervasive constitutional violations faced by those detained at the MSOP.

"Justice requires no less," he said in closing.

The state filed its appeal immediately following Frank's ruling Thursday and asked the court to stay its order during the appeals process.

"Defendants are entitled to a right to be heard by an appellate tribunal before undertaking the court's improper, extensive, and costly relief," the state argued in a memorandum to the court. "A stay or suspension of the court's order is warranted, especially given the irregular proceedings that led to the court's liability and injunctive orders and the unprecedented and erroneous legal analysis on which those orders are based. Denial of defendants' motion would effectively deprive defendants of their appellate rights and interfere with the state's sovereign authority to enact and implement commitment legislation in the interest of public safety."

The House Republican majority, often at odds with the Democratic-Farmer-Labor Party governor, backed Dayton's defense of the sex offender program.

"Our top priority remains keeping Minnesota families safe," Rep. Tara Mack, R-Apple Valley, said in a statement. "We believe the Minnesota Sex Offender Program is constitutional and support efforts by the governor and attorney general to seek an appeal and stay of the judge's ruling."

But Mankato DFL Sen. Kathy Sheran, chair of the Senate's Health, Human Services and Housing Committee -- who has previously sponsored legislation that would have addressed some of the program's flaws -- said she supported many of the changes ordered by Frank.

"I think that the steps that the court wants us to take are reasonable and fit with what needs to be done in order to make certain that we're constitutionally correct," Sheran said.

Sheran said Frank's remedies "are not any different than those that have been recommended to the Legislature from a variety of ... task forces over the years."

But she said the aggressive time frame Frank set might not give the state enough time to implement his changes.

Even as Dayton appeals Frank's ruling, he and Department of Human Services Commissioner Lucinda Jesson -- the lead defendant in the lawsuit because her department oversees the MSOP -- say they'll try to get more time to perform the evaluations Frank says are needed.

Those evaluations will cost money and could lead to a political fight in the Legislature. The Department of Human Services wants lawmakers to give it $8.6 million to speed the process of evaluating sex offenders.

As it stands, Jesson said her department doesn't have the funds or staff to conduct evaluations of all 700-plus offenders within the time frame Frank outlined. She said the department is slowly but surely evaluating some patients, including most of the plaintiffs who filed the lawsuit.

Mack, the chair of the House's Health and Human Services Reform Committee, said she doesn't see the need for more money or a faster evaluation pace until the issue is settled in the courts.

Gustafson said an appeal could take 18 months or longer.

David Montgomery contributed to this report. Elizabeth Mohr can be reached at 651-228-5162. Follow her at twitter.com/LizMohr. Rachel Stassen-Berger can be reached at rstassen-berger@ pioneerpress.com. Follow her at twitter.com/rachelsb.

SUMMARY

A judge has ordered Minnesota to make changes to its sex offender program, in which more than 700 people have been civilly committed, either in lieu of or following prison sentences. Judge Donovan Frank previously found the program unconstitutional because the offenders were effectively locked up indefinitely with no hope of release.

Here's what the judge ordered state officials to do in order to make the Minnesota Sex Offender Program constitutional:

-- Immediately begin reevaluating all of the 700-plus sex offenders in custody to see if they should be released or transferred to a lower-security facility.

-- Begin discharge proceedings on behalf of residents who should no longer be there.

-- Make sure there are less restrictive placement options for residents deemed eligible.

-- Start performing annual risk assessments on all residents.

Frank previously appointed former Minnesota Supreme Court Chief Justice Eric Magnuson as Special Master to oversee the program. The court will maintain its oversight of the Minnesota Sex Offender Program for five years.

If Minnesota refuses to comply with the order promptly, Frank said he could hold the state in contempt or even order immediate release of sex offenders in the program -- a step he said he didn't take Thursday "in the interest of public safety."

SEX OFFENDER CASE TIMELINE

Dec. 21, 2011: Lawsuit filed in federal court by residents in the Minnesota Sex Offender Program, claiming the program is unconstitutional.

Feb. 9, 2015: Trial begins; lasts six weeks.

June 17: Federal judge rules that the program is unconstitutional and calls for sweeping changes.

Oct. 29: Federal judge orders Minnesota to evaluate all civilly committed sex offenders to determine whether they can be placed in less restrictive settings or released. The state immediately files a notice of appeal.

By Nov. 29: State must evaluate eight offenders and submit a plan for "reevaluations of the elderly, individuals with substantive physical or intellectual disabilities, and juvenile-only offenders," the judge ordered.

By Dec. 29: State must submit a plan to evaluate all 700 sex offenders who are committed, judge ordered.